Flags, Flames, and Property
Cohen, Andrew I., Freeman
A constitutional amendment that would forbid the desecration of American flags is again percolating in the nation's capital. As of this writing, the immediate prospects for passage look bleak. But this amendment has a way of never fully going away. Many opponents of the measure trot out free speech arguments. And although concerns about free expression are important, these traditional arguments miss a more central political principle that the amendment and resulting laws against flag burning would jeopardize: property rights. The amendment would undermine key liberties for which the flag stands.
Arguments for Flag Desecration Laws
Those who uphold laws against flag desecration typically speak of the important values that the flag symbolizes. They claim that legally allowing flag burning is tantamount to rejecting the freedoms that the flag represents. They say it is vital that we express our respect for human freedom by institutionalizing penalties against those who would defile the national symbol.
Permitting flag burning, the amendment's proponents continue, sends the wrong message to America's youth, America's voters, and observers abroad. When the young see protesters publicly burning a flag with impunity, they may believe that American freedoms are cheap. They may then think that the nation's commitment to uphold those freedoms is fleeting. Permitting flag burning may also undermine a key basis for community among America's voters. With protesters burning flags, voters may lose a vision of shared citizenship and be less committed to the American ideal. Flag burning is also supposedly a slap in the face to all Americans who suffered in wartime to secure freedoms for everyone. Lastly, foreign observers who see Americans burning their own flag may be less inclined to support America's international policies aimed at securing freedom. Advocates fear that foreigners will think: if Americans cannot take their own freedoms seriously, then we need not take seriously the moral reasoning they present to the world.
The Free Speech Argument Against Flag Desecration Laws
People who burn flags intend to send a message by doing so. This is what makes flag burning a form of expression. Some flag burners take offense at various American foreign policy measures. (Recall the nightly news broadcasts last summer showing Sudanese burning American flags in Khartoum after the United States bombed what it deemed a suspicious pharmaceutical factory.) Some individuals may burn flags as a way of saying America is not true to its own values. Others simply despise American ideals and set the flag aflame. In any case, people who burn flags do so deliberately in order to send a public message of protest.
The First Amendment to the Constitution reads, "Congress shall make no law . . . abridging the freedom of speech." Constitutional scholars and legal theorists have long argued over the meaning of this amendment. There is, however, a rough consensus on two ideas: (1) the amendment protects peaceful expression, popular or unpopular, but (2) the Framers clearly did not intend for it to license any and all forms of expression. Consequently, room has been made for laws against libel, slander, and obscenity. Contrary to hyperbolic op-eds railing against flaming protests, burning a flag is not "obscene." At worst, it is despicable. At best, it is a valuable form of political speech.
The First Amendment protects freedom of speech, which in turn protects the liberty to say wrong-headed, bigoted, stupid, vicious things. Such protection is crucial; otherwise freedom of speech would reduce to the empty freedom to say only the right, the true, and the good. That would present a disturbing practical difficulty: some bureaucrat would have to decide what is permissible speech, because in today's pluralistic society, there is little consensus on many aspects of the right, the true, and the good. Freedom of speech, however, is the freedom to say what one wishes without having to solicit the permission of anyone first. …